Posts tagged ‘consent’

Many have commented on the recent Supreme Court of Canada decision in the Rasouli case and it is interesting to hear different views. The case deals with one aspect of how we deal with end of life decisions. The issue – who decides when life support should or should not be continued where the measures may have no medical or quality of life benefit to the patient? The Court upheld the decision of the courts below, holding that where a substitute decision maker under the Ontario Health Care Consent Act (“HCCA”) does not consent to the withdrawal of life support, even where the patient’s physician is of the opinion that life support does not provide a medical benefit to the patient, a physician’s only remedy is an application to the Consent and Capacity Board (the “Board”) established under the HCCA. The Board’s power is to review the decision of the substitute decision-maker to determine whether she has complied with the rules for giving or refusing consent to treatment set out in the HCCA. If the Board finds that she has, apart from any appeal available under the HCCA, life support will continue and the physician has no further legal recourse.

In my view, and I believe the view of most commentators, the decision was not unexpected. What I found interesting about the case though was the fact that it was not a majority decision. Two Justices, Abella and Karakatanis, dissented from the majority. To me, the dissent reflects some of the differing views of Canadians on this subject.

It is notable that the majority went to some lengths to narrow the issue as much as possible and not address a greater societal debate. The Court held that the issue could be decided on a straight-forward statutory interpretation basis. The majority found that its sole role was to determine if the HCCA applied in this situation. It found that it did because life support was found to be “treatment” under the Act as it is for a “health related purpose”, part of the definition of treatment under the HCCA. The Court rejected the doctors’ submission that to fall within the HCCA, the treatment must be of a medical benefit, holding that to do so find would substitute physician-made criteria for the decision-making criteria set out in the HCCA. As life support is treatment, the procedure to be followed in challenging the substitute decision-maker’s decision to continue life support is that set out under the HCCA.

The minority decision takes a more, might I say, political view. It concluded that the HCCA codifies the common law right to refuse treatment but does not give patients, or their substitute decision-makers, the right to “insist on the continuation of a treatment that is futile, harmful, or contrary to professional medical standards of care”. These Justices determined that, at first instance, a physician should be permitted to determine whether life support has any chance of being medically effective and whether withdrawal of the treatment is in the best interests of the patient. That decision must be made within the professional standard of care at common law and is subject to review by the courts. This determination necessarily includes consideration of the patient’s wishes, values and beliefs, in addition to the broad mental and physical implications for the patient’s condition and well-being, all within the framework of governing legal principles.

The minority held that to do otherwise (ie. submit the issue of withdrawal/continuation of life support to the decision-making process under the HCCA) gives too much decision making power to the substitute decision-maker and would have a detrimental impact on the standard of care and legal, ethical and professional duties in the practice of medicine. The minority held that there must be a balance between patient autonomy and the physician’s role, expertise, and advice. It also found that “there are a myriad of important interests, such as the integrity of our health care system, at stake”. Of course, the “integrity of our health system” could include many socio-economic considerations.

The approach of the majority in confining the case to the narrowest of legal issues illustrates to me that the matter of end of life decisions is one that the courts would prefer to leave to the legislature (as would be expected), where the greater societal debate can be played out. The position of the minority reflects one view within that debate.

The balance of individual constitutional rights against the legislative objective of providing medical care to individuals suffering from mental disorders can lead to curious results. One such result was illustrated in the recent appeal from the Ontario Consent and Capacity Board (the “Board”) to the Ontario Superior Court of Justice in Gradek v. Shafro.

Mr. Gradek “suffered from a schizoaffective disorder, a bipolar subtype with features of mania”. Mr. Gradek did not agree with this diagnosis and denied that he has a mental disorder. He was admitted to a psychiatric facility on an involuntary basis by means of a physician’s certificate under subsection 20(5) of the Ontario Mental Health Act (“MHA”). He was also found by his physician to be incapable of consenting to or refusing treatment for his disorder with anti-psychotic and mood stabilizing medications (subsection 4(1) of the Health Care Consent Act (“HCCA”)). Both of these findings were upheld by the Board. Mr. Gradek appealed.

Subsection 20(5) of the MHA sets out the conditions for involuntary admission of a patient to a psychiatric facility by a physician. Those conditions require that the attending physician, after examining the patient, be of the opinion that the patient is suffering from a mental disorder of the nature or quality that likely will result in serious bodily harm to the patient or another person, or result in serious physical impairment of the patient, unless the patient remains in the custody of a psychiatric facility.

The Board found that Mr. Gradek’s mental disorder would likely result in serious bodily harm or serious impairment to him. On the facts of this case, the Court did not agree. It agreed that Mr. Gradek suffered from a mental disorder but found that evidence of serious harm or impairment was insufficient. As a result, the Court granted the appeal with respect to the involuntary admission. The effect was that Mr. Gradek could not be held in the facility on an involuntary basis.

However, the Court did agree with the Board’s finding that Mr. Gradek was incapable of consenting to or refusing treatment in connection with his mental disorder. Under the HCCA, such a determination requires a finding that a person is not able to understand information that is relevant to making a decision about treatment and to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Based on Mr. Gradek’s diagnosis, the Court was satisfied that this test had been met. In these circumstances, a substitute decision-maker could make the decision to consent or refuse treatment on Mr. Gradek’s behalf. Unfortunately, he did not have a suitable substitute decision-maker (Mr. Gradek’s mother was a substitute decision-maker but appeared unwilling to continue in that role) *.

Mr. Gradek made it clear that if discharged, he would not take medication for his condition (not surprising given that he did not accept that he has a mental disorder). The net effect then of the Court’s decision is that Mr. Gradek could not be kept involuntarily but will not, at least for the time being, be treated for his disorder.

The decision illustrates how the Courts will jealously guard an individual’s s. 7 Charter right to liberty of the person by strictly applying legislation that may limit that right. In the proper circumstances, the limitation will be allowed. Those circumstances did not exist in this case. The effect of this decision though, is that a person deserving of treatment may not receive it. A price we pay for our constitutional freedoms or a hole in the constitutional/legislative framework? – depends in your perspective.

* The judge did posit that an option here is to arrange for the appointment of a new substitute decision-maker